5th Circuit denies execution appeal

Posted on Sat, Oct. 27, 2007
THE ASSOCIATED PRESS

JACKSON --The 5th U.S. Circuit Court of Appeals denied the appeal of condemned Mississippi inmate Earl Wesley Berry on Friday, temporarily clearing one of two attempts to stop his execution.

The court ruled Berry waited until too late to file his appeal.
"Well-established Fifth Circuit precedent is clear: Death-sentenced inmates may not wait until execution is imminent before filing an action to enjoin a state's method of carrying it out," the court ruled.

Berry is scheduled to be executed by lethal injection Tuesday in the state penitentiary at Parchman. He has asked the courts to stop his execution until the U.S. Supreme Court decides a Kentucky case that questions whether lethal injection violates the Constitution's ban on cruel and unusual punishment.

Berry's attorney, Jim Craig, said in an interview with The Associated Press he will appeal the decision to the Supreme Court.
"Ultimately they've decided their past precedents trumped the Supreme Court's recent granting (of a stay) in the Kentucky case and that will require us to go to the Supreme Court," Craig said.

Berry was sentenced to death for the 1987 murder of Mary Bounds. Bounds was beaten to death after being abducted shortly before her weekly church choir practice, and her body was found just off a Chickasaw County road near Houston.

When contacted Friday evening about the ruling, Mississippi Department of Corrections Commissioner Chris Epps said he had just returned from Parchman.
"We did some rehearsals up there," he said.
"We always make sure (we're prepared). You've got about 100 employees involved in an execution."

Epps said the lethal cocktail used to put condemned inmates to death has not been an issue in Mississippi.
"I don't see any problems with it," he said.